A remarkable day in the story of Internet privacy

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Four significant events on Wednesday have pushed the public debate about government surveillance and Internet privacy to new levels—and have led to new questions about the National Security Agency and its activities.

General Alexander at the Black Hat conference

The day started with two bombshells – new revelations from The Guardian’s Glenn Greenwald about NSA spying and the official release of three formerly top secret documents by the U.S. government. Those events were followed by a testy Senate hearing on Capitol Hill about the NSA, and then the appearance of a four-star U.S. General debating hecklers at a huge computer hackers’ convention in Las Vegas.

As the dust settled later in the day, it’s clear that the Obama administration wants to engage in a dialogue about the legitimacy of its surveillance activities under the Fourth Amendment and the USA Patriot Act. It was also clear that The Guardian’s report, based on information supplied by fugitive analyst Edward Snowden, revealed a program that on the surface may contradict the safeguards that the government says it put in place to guarantee First Amendment and Fourth Amendment protections.

As General Keith Alexander’s presentation and dialogue at the Black Hat convention also showed, there are doubts in the computer field about the NSA, and mixed feelings about the need for trading personal privacy online in exchange for greater national security.

First, the Director of National Intelligence, James Clapper, released three redacted documents that explained in more detail how the Justice Department justifies the collection of phone and email records from American citizens and others, to Congress and a judge at the top-secret Foreign Intelligence Surveillance Act court.

The documents were released to coincide with a Senate Judiciary Committee hearing on the NSA. They explained that the government has multiple levels of checks and balances to make sure that only basic phone and email “metadata” are placed into massive NSA databases, and only a handful of people see it—after there is a “reasonable suspicion” to view it.

This metadata is limited to incoming and outgoing phone numbers, the location of phone calls, their duration, email addresses and routing numbers for emails. The government documents said that the content of phone calls and emails wasn’t recorded, monitored, or stored, when an analyst voiced reasonable suspicion and accessed it with a direct court order. (The Justice Department said that Supreme Court precedents allowed this outside of the Fourth Amendment’s protections against unreasonable search and seizure.)

But before the hearing, Greenwald published his exclusive story, based on presentation slides and training materials provided by Snowden, might contradict the government’s claims about only collecting metadata.

Greenwald discussed a much-more intrusive spying system called XKeyscore that allegedly allows government analysts to read the content of emails, as well as private social media communications and Internet browsing histories. He said the training document claimed about 300 terrorists had been caught by 2008 using XKeyscore.

What’s unclear is how much XKeyscore was used to target foreign communications and how the NSA could collect the huge amount of daily Internet traffic and store it to exclude domestic content.

In a statement to The Guardian, the NSA confirmed the existence of XKeyscore and said it was used lawfully.

“XKeyscore is used as a part of NSA’s lawful foreign signals intelligence collection system,” it said. “Every search by an NSA analyst is fully auditable, to ensure that they are proper and within the law. These types of programs allow us to collect the information that enables us to perform our missions successfully – to defend the nation and to protect US and allied troops abroad.”

The Senate Judiciary Hearing then became heated, as some Senators were upset that the DNI released the formerly top secret surveillance documents with little notice.

Senator Al Franken specifically called out the DNI for its last-minute decision.

“I don’t want transparency only when it’s convenient to the government,” Franken said. The Office of the Director of National Intelligence … has known for weeks that this hearing was coming and ODNI released this only in the minutes before this hearing began. That doesn’t engender trust.”

The top Republican on the committee, Senator Chuck Grassley of Iowa, opening questioned the legal basis for the programs and again ripped DNI head Clapper, who has acknowledged he making inaccurate statements to Congress about the surveillance program in March.

General Alexander, the head of the NSA, wasn’t at Wednesday’s hearing. Instead, Alexander spoke to an overflow audience in Las Vegas at a big international convention for self-professed hackers and computer security professionals.

Alexander confronted questions about the surveillance programs head-on during his presentation, explaining at length the safeguards taken to protect data and how the information war was personal to him, since 20 NSA cryptographers had been killed over the past 10 years in Iraq and Afghanistan

“They are willing to put their lives on the line for their fellow soldiers and fellow Americans. These same people who take that same oath to uphold the Constitution are the same ones who run these programs,” Alexander said.

Alexander also directly answered a heckler in the audience at one point, who told him to “read the Constitution.”

“I have,” Alexander said. “You should too!”

Alexander will appear before Congress on Thursday in what could be another big day for Internet privacy followers. His appearance will follow news from Russia that that nation has granted Snowden political asylum for the next year.

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